Skip to content


Kambinayani Javvaji Timmaji Amma Garu and ors. Vs. Kambinayani Javvajee Subbaraju Nayanivaru and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtChennai
Decided On
Reported in(1910)20MLJ204
AppellantKambinayani Javvaji Timmaji Amma Garu and ors.
RespondentKambinayani Javvajee Subbaraju Nayanivaru and ors.
Cases ReferredImrit Kunwar v. Roop Narain Singh
Excerpt:
.....heirs was clearly adverse to the widow, and this being so, their holding could not be regarded as being under an arrangement which in its effect was tantamount to an alienation by the widow. the suit is therefore clearly barred by limitation and was rightly dismissed......zemindari. the effect of the compromise briefly is that for a consideration madamma agreed not to press her disputed claim to execute the decree and recover the property. there was no admission of her right, no title derived from her. in this view the only other question which need be considered is whether the suit is barred by limitation. though the plaintiff's father got a decree in 1876 for the suit property he never got. possession, nor did madamma. even as against the plaintiff's father the possession of the 1st defendant's father was adverse and it having been found that no title was derived by the 1st defendant's father by alienation from madamma, the property continued to be held adversely by the 1st defendant's father and the 1st defendant up to the date of the suit. the suit.....
Judgment:

Miller, J.

1. The preliminary objection that the suit was not on behalf of the estate fails. There is nothing in the language of the plaint to which our attention was called which rebuts the presumption arising from the nature of the relief claimed, that the suit was on behalf of the estate.

2. On the merits I have had an opportunity of reading the judgment which my learned brother has prepared, and I agree with him that the compromise does not effect an alienation by the widow of rights which she possessed, so as to make the possession of the 1st defendant's father a possession derived from her. The widow gave up or relinquished her rights and interest and all claim under the decree, but I do not read that as meaning that she transferred those rights, interests and claims to the 1st defandant's father, but only that she undertook to make no further claim under the decree. There is a transfer of property by him to her but none by her to him.

3. That being so I concur in dismissing the appeal on the ground that the suit is barred by limitation.

Munro, J.

4. This is an appeal by the plaintiff against the decree of the District Court of North Arcot in O.S. No. 9 of 1903. The plaintiff's father brought O.S. No. 5 of 1876 against the father of the 1st defendant, and a compromise was entered into and a decree passed thereon by which one-third of the Kangundi Zemindari and a sum of Rs. 20,000 were awarded to the plaintiff's father. The plaintiff's father executed the decree so far as the sum of Rs. 20,000 was concerned. He also applied in execution for the one-third share of the Zemindari, but died in 1878 before division was carried out. The plaintiff's mother Madamma was brought on record as legal representative. Her right to execute the decree was contested by the first defendant's father, but was upheld by the District Court and by the High Court on appeal. The 1st defendant's father on the 28th October 1881 obtained leave to appeal to the Privy Council and on the 30th March 1882 applied for stay of execution. While matters stood thus the parties came to an agreement and executed Exh. XLI on the 2nd July 1882. Exh. XLI sets out the above facts and goes on to say that in view of the termination of the disputes, in view of the trouble and loss that both parties had been put to, and also in view of the uncertainty of the result of the appeal to the Privy Council a settlement had been arrived at. Under the settlement the 1st defendant's father was to give certain immovable properties to Madamma and to the plaintiff who was then a minor, pay Rs. 2,500 annually to Madamma and a lump sum of Rs. 57,000 to Madamma and the plaintiff. On their part Madamma, the plaintiff, and her heirs were to relinquish all their rights under the decree in O.S. No. 5 of 1876. The deed then proceeds to say in paragraph 10 that Madamma took possession of the immovable properties and received payment of the Rs. 57,000, and relinquished on her own behalf and on behalf of the plaintiff all rights and interest in the decree in O.S. No. 5 of 1876 while the 1st defendant's father and his heirs relinquished all their rights and interest in the matter of Madamma, the plaintiff and their heirs enjoying the properties put in Madamma's possession. It was further provided that Madamma should within twenty days certify satisfaction of the decree in O.S. No. 5 of 1876, and that the 1st defendant's father should withdraw his appeal to the Privy Council and his application for stay of execution. These provisions were carried out. Madamma died in 1885 and the estate was in charge of the Court of Wards till the nth March 1900. On the 15th March 1900 the plaintiff applied to be brought on record as her father's representative, and to be allowed to execute the decree in O.S. No. 5 of 1876. The 1st defendant contended that as satisfaction had been recorded there was no subsisting decree which the plaintiff could execute. This contention was upheld by the District Court and the High Court, and the plaintiff's application was dismissed. The plaintiff then filed the present suit. She alleged in her plaint that the settlement under Ex. XLI was fraudulent and intended to defeat her rights; that for the consideration set out in Exh. XLI Madamma alienated the property decreed to her father and that as the settlement was without legal necessity and in fraud of her rights the alienation effected thereby was not binding beyond her mother's lifetime. She prayed inter alia for a declaration that the alienation was invalid and inoperative beyond Madamma's lifetime, and for partition and recovery of a third share of the Zemindari.

5. The District Judge found that the plaintiff's suit was barred by res judicata, by limitation and by Section 244, Civil Procedure Code (Act XIV of 1882). He also found that the plaintiff had no cause of action. The decision of these questions turned mainly upon whether there was an alienation by Madamma of her husband's estate as alleged in the plaint. The District Judge found there was not, and it is to the propriety of that finding that the arguments for the appellant have been mainly directed. Sheo Narain Singh v. Khurgo Koerry and Sheo Narain Singh v. Bishen Prosad Singh (1882) 10 C.L.R. 337, Mussamut Indro Kooer v. Shaikh Abool Burkat (1870) 14 W.R. 148, and Sant Kumar v. Deo Saran I.L.R. (1886) A. 368, are relied upon in support of the contention that under the settlement or compromise evidenced by Exh. XLI there was an alienation by Madamma of the property decreed to the plaintiff's father in O.S. No. 5 of 1876. In the first of these cases one Tejmun Singh having died in 1835, his brothers, though divided from him, got their names registered as owners of the estate which had been in his possession till his death and, as is clear from the report see particularly page 345, where it says the brothers got possession in 1835-took possession of at least two mouzahs of that estate. The widow of Tejmun Singh, alleging that he had been divided from his brothers, sued for concealment of the registration and for confirmation of possession. She succeeded in the first Court, but was defeated on appeal. She then preferred a special appeal, and, while that appeal was pending, entered into a compromise, by which she gave up her claim of having the special appeal heard, and agreed that the heirs of her husband's brothers should remain in possession of the two mouzahs, of which, as above mentioned, they had taken possession, she herself taking the rest of the property for life with reversion to the heirs of the brothers. In 1879, within twelve years after the death of the widow, suits to recover the two mouzahs were brought by the daughters of Tejmun Singh and their assignees, and one of the questions which the High Court had to decide was whether the suit was barred by limitation. The Court held that there was no adverse possession during the life of the widow because 'the suit by the widow and the succeeding compromise was tantamount to an alienation by the widow of a portion of the property for her life-time,' and that the period of limitation must be counted from her death. With great respect I find myself unable to accept this view. In Radha Mohan Dhar v. Ram Das Dey (1869) 3 B.L.R. 362, one Ramkant died leaving immovable property and his widow took possession. The defendant claimed the property and threatened the widow with legal proceedings. The widow thereupon gave up her own title and possession and permitted the defendant to hold the property as part of his estate. The question arose whether the possession of the defendant was adverse to the widow, and it was held that it was. In Adi Deo Narain Singh v. Dukharan Singh I.L.R. (1883) All. 532, on the death of the widow who was in possession, the person entitled to succeed to the property was the daughter of the last male holder if it was his separate property. The defendants, however, took possession, and it was alleged that the daughter acquiesced in the possession. It was contended that as the defendants held possession with the consent of the daughter their possession was not adverse to her. The argument was held to be fallacious. It was observed that the possession of the defendants was in no way derived from or under the daughter, as she had never obtained possession herself at all, and that the defendants did not maintain their possession in virtue of any title acquired by them through her, by sale, transfer or otherwise. It is pointed out that the two cases just referred to were not cases in which there had been compromise after suit brought. It can, I think, make no difference whether the female gives up her claim before suit or by compromise after suit, unless there is something in the compromise itself to make a difference. In Gunesh Dutt v. Mussamut Lall Muttee Kooer (1872) 17 W.R. 11,there were two brothers. One had a son, Chedee Lall, who died leaving a widow. This widow and the sons of the other brother put in applications under Act XXVII of 1860, the former claiming a life interest in Chedee Lall's estate and the latter claiming the property as joint family property. There was a compromise by which the widow abandoned her claim and admitted the right claimed by the brother's sons. It was contended that the brother's sons were holding with the widow's consent, and that, therefore, their possession was not adverse to her. The Court observed as follows:-' Looking to the proceedings under Act XXVII it is quite clear that the defendants have never admitted in the slightest degree that they hold under the widow. They alleged, and still allege, a title entirely hostile to her and possession based on that title, and the fact that she, for reasons which we need not consider, chooses to abandon her own claim * * * does not alter the nature of their possession from an adverse to a derived possession. The compromise may be perfectly binding on her, but there is nothing in the terms of it to show that the appellants admitted and acquired her rights * * * * * They bought the widow's silence, but did not attempt to acquire her rights as heiress * * * * In considering whether the possession is adverse, we must see whether it is based on a title derived from the widow as representative of the separate estate or on one which leaves no separate estate to be represented.' Now I have no hesitation in holding that the principles upon which the three cases last quoted were decided are correct, and, applying them to the facts in Sheo Narain Singh v. Khurgo Koerry and Sheo Narin Singh v. Bishen Prosad Singh (1882) 10 C.L.R. 337. I am constrained to hold that the decision in that case on the question of adverse possession cannot be supported. The possession of the brother's heirs was clearly adverse to the widow, and this being so, their holding could not be regarded as being under an arrangement which in its effect was tantamount to an alienation by the widow. In Mussamut Indro Roer v. Shaikh Aboot Burka (1870) 14 W.R. 146 there was a compromise by which a Hindu widow gave up all her rights in the estate of her deceased husband, reserving only a life interest in part of it, and the question was whether the reversioner was bound by the compromise. It was held that he was not, on the ground that the compromise could not but be regarded as an alienation. Now, there can be no doubt that such a compromise would be binding on the reversioner-Imrit Kunwar v. Roop Narain Singh (1880) 6 C.L.R. 776 and if, as I think, what the learned Judges meant to say was that the compromise could not affect the rights of the reversioner any more than an alienation could have done, there is no difficulty in agreeing with them. In Sant Kumar. Deo Saran I.L.R. (1886) All. 365,the widow got possession of her husband's property alleging it to be his separate estate. Her husband's brother's son sued her for possession of the property. There was a compromise by which the widow admitted that the family was joint and that she was only entitled to maintenance. In a suit by a reversioner after the widow's death the question arose whether the compromise was binding on the reversioner. It was pointed out that while a decree finally obtained against a widow in a dona fide litigation could bind the reversioners, a compromise was not on the same footing as such a decree, and that the compromise then in question could scarcely be regarded as having any footing higher than that of an alienation which the widow in possession of her husband's divided estate could have made. With all this I entirely agree. But it is no authority for saying that the same results necessarily flow from a compromise by a widow as would flow from an alienation by the widow.

6. Now when we examine the compromise in the present case in the light of the principles indicated above, it is, I think, impossible to hold that there was an alienation by Madamma of one-third of the Zemindari. The effect of the compromise briefly is that for a consideration Madamma agreed not to press her disputed claim to execute the decree and recover the property. There was no admission of her right, no title derived from her. In this view the only other question which need be considered is whether the suit is barred by limitation. Though the plaintiff's father got a decree in 1876 for the suit property he never got. possession, nor did Madamma. Even as against the plaintiff's father the possession of the 1st defendant's father was adverse and it having been found that no title was derived by the 1st defendant's father by alienation from Madamma, the property continued to be held adversely by the 1st defendant's father and the 1st defendant up to the date of the suit. The suit is therefore clearly barred by limitation and was rightly dismissed. This appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //